Naples v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

PAMELA NAPLES,

Plaintiff,

V. CASE NO. 3:18-cv-738-J-MCR

COMMISSIONER OF THE SOCIAL

SECURITY ADMINISTRATION,

Defendant.

MEMORANDUM OPINION AND ORDER'

THIS CAUSE is before the Court on Plaintiff's appeal of an administrative

decision denying her application for a period of disability and disability insurance

benefits (“DIB”). Following two administrative hearings held on October 19, 2016

and February 16, 2017, the assigned Administrative Law Judge (“ALJ”) issued a

decision, finding Plaintiff not disabled from January 9, 2014, the alleged disability

onset date, through June 8, 2017, the date of the decision.’ (Tr. 7-116.) Based

on a review of the record, the briefs, and the applicable law, the Commissioner’s

decision is AFFIRMED.

' The parties consented to the exercise of jurisdiction by a United States

Magistrate Judge. (Doc. 18.)

* Plaintiff had to establish disability on or before March 31, 2019, her date last

insured, in order to be entitled to a period of disability and DIB. (Tr. 10.)

l. Standard

The scope of this Court’s review is limited to determining whether the

Commissioner applied the correct legal standards, McRoberts v. Bowen, 841

F.2d 1077, 1080 (11th Cir. 1988), and whether the Commissioner’s findings are

supported by substantial evidence, Richardson v. Perales, 402 U.S. 389, 390

(1971). “Substantial evidence is more than a scintilla and is such relevant

evidence as a reasonable person would accept as adequate to support a

conclusion.” Crawford v. Comm’ of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir.

2004). Where the Commissioner's decision is supported by substantial evidence,

the district court will affirm, even if the reviewer would have reached a contrary

result as finder of fact, and even if the reviewer finds that the evidence

preponderates against the Commissioner’s decision. Edwards v. Sullivan, 937

F.2d 580, 584 n.3 (11th Cir. 1991); Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th

Cir. 1991). The district court must view the evidence as a whole, taking into

account evidence favorable as well as unfavorable to the decision. Foote v.

Chater, 67 F.3d 1553, 1560 (11th Cir. 1995); accord Lowery v. Sullivan, 979 F.2d

835, 837 (11th Cir. 1992) (stating that the court must scrutinize the entire record

to determine the reasonableness of the Commissioner’s factual findings).

ll. Discussion

Plaintiff argues that the ALJ’s residual functional capacity (“RFC”)

determination is not supported by substantial evidence, because the ALJ did not

adequately evaluate the opinions of the testifying impartial medical expert, Dr.

Jeffrey Hansen, and improperly gave little weight to the opinions of Janice

Wilmoth, Ph.D., Psy.D., CCS, a one-time examining psychologist. The

Commissioner responds that substantial evidence and proper legal analysis

support the ALJ’s decision. The Court agrees with the Commissioner.

At step two of the five-step sequential evaluation process, the ALJ found

that Plaintiff had the following severe impairments:

[A] history of chronic low back pain; a history of hyperlipidemia; a

history of obesity; a history of major depressive disorder (moderate);

a history of pain disorder due to psychological factors and a general

medical condition; a history of generalized anxiety disorder; a history

of obstructive sleep apnea without use of a CPAP on a consistent

basis; a history of hypertension; a history of carpal tunnel syndrome

(right greater than left) with right middle trigger finger[;] and a history

of alcohol and tobacco abuse[.]

(Tr. 12.)

The ALJ then found that Plaintiff had the RFC to perform “less than the full

range of light work” as follows:

In an 8-hour workday, with reasonable and customary breaks, the

claimant can sit, stand and walk for 6 hours each. The claimant can

lift/carry 20 pounds occasionally and 10 pounds or less more

frequently; she can use her upper and lower extremities for the

push/pull operation of arm/hand and foot/pedal controls at least

occasionally; she can climb ramps and stairs occasionally, but never

climb ropes, ladders and scaffolds; she can bend, stoop, crouch and

kneel occasionally but never crawl. With her upper extremities, she

can reach in all directions frequently. With respect to her dominant

right hand, she can handle and feel frequently but only perform fine

manipulation occasionally; she can use her left hand to perform such

handling, fingering and feeling on a frequent basis. The claimant

has no difficulties in her ability to see, speak and hear. The claimant

should not work in proximity to unprotected heights, around

dangerous moving machinery or around concentrated industrial

vibrations. The claimant can perform work either at the unskilled or

semi-skilled level (SVP of 1-4) with only occasional contact with co-

workers, Supervisors and members of the public. The claimant

should not have any job requiring her to meet a strict production goal

or quota[,] such as assembly type work.

(Tr. 14.)

In doing so, the ALJ discussed Plaintiffs complaints and daily activities, the

treatment notes, the objective medical records, and the opinion evidence. (Tr.

14-26.) The ALJ addressed Dr. Wilmoth’s examination as follows:

In December 2016, the claimant presented to Janice Wilmoth, Ph.D.,

Psy.D. to determine her diagnoses and abilities. She reported that

the VA had awarded her 40% for her back injury but nothing for her

depression. She reported that she last worked at Pep Boys, but

could not handle it anymore and stopped working. She stated that

others helped her as much as they could and that they even bought

her a stool so she would not have to stand, but even with such

assistance she was no longer able to function adequately. Upon

examination, the claimant walked slowly and with a cane. She was

alert and oriented. She was cooperative, made adequate eye

contact and was able to establish a superficial rapport. She had

difficulty recalling dates and places. She was able to pay attention

with difficulty across the course of the evaluation. She was in pain

as the day progressed and she had more difficulty walking. Her

comprehension seemed good and her thought content was

appropriate. She appeared to comprehend instructions. She

reported no desire to be around people. She showed no attempts to

improve her appearance either with makeup, clothes or a haircut.

On a standard measure of cognitive effort and memory, she passed

all portions of the test. There was no evidence of malingering or

cognitive problems. Dr. Wilmoth noted that she appeared to have

memory problems, but they were not measured as part of the

evaluation. Dr. Wilmoth noted that the likely impetus for the

claimant’s level of depression and chronic pain was her military

service and the accidents she encountered in the military. In

addition, Dr. Wilmoth noted that the claimant's capacity to interact

with others, stay focused on a project and have the capacity to see it

through was extremely limited. Further, Dr. Wilmoth indicated that

the claimant’s pain limits her concentration and contributes to her

irritability, which could cause significant problems in the workplace.

Dr. Wilmoth diagnosed the claimant with major depression,

recurrent, severe; pain disorder associated with both psychological

factors and a medical condition; generalized anxiety disorder and

alcohol abuse in sustained remission (Exhibits 16F and 17F).

(Tr. 22-23.)

The ALJ gave Dr. Wilmoth’s opinions “little weight.” (Tr. 25.) The ALJ

reasoned:

Dr. Wilmoth examined the claimant only once, reviewed the file and

did not offer treatment to the claimant. It appears that the focus of

this assessment was to try to assist the claimant in gaining an

increased VA service connected disability rating as she was

attempting to link her depression to her military service. This

conclusion is simply not supported by either her VA records or her

intervening work history. This assessment is also, in some respects,

inconsistent with the conclusions offered by Dr. Joshi, her VA

treating psychiatrist who has treated her for more than one and a half

years. Dr. Joshi’s many mental status assessments are inconsistent

with the evaluation offered by Dr. Wilmoth and fail to support her

contention that this claimant’s current depression is connected with

her prior military service.

(/d.)

The ALJ also addressed Dr. Hansen's opinions as follows:

At the February 2017 administrative hearing, an independent

medical expert and board certified orthopaedic surgeon, Jeffrey

Hansen, M.D. (Exhibit 18F) testified regarding the claimant’s

impairments. Dr. Hansen testified that the claimant has a history of

back pain with symptoms of sciatic nerve irritation subsequent to

injuries, and, specifically, a fall a couple decades ago. Dr. Hansen

indicated that a 2012 MRI showed degenerative disc disease at L5-

S1 with no foraminal or canal narrowing, which means there is no

nerve compression (Exhibit 6F/18). He stated that there was an

annular tear and a little bit of facet arthritis, but the rest of the scan

was normal. He noted that this is a relatively benign and mild MRI

without any nerve compression. As to her sciatic nerve irritation, he

noted that there was not a full explanation in the record for her

symptomatology. He testified that she has developed problems with

her fingers more recently and that an EMG confirmed carpal tunnel

syndrome (Exhibit 14F/43). In addition, he testified that she has

some sacroiliac pain and depression. Dr. Hansen acknowledged

that there was no evidence of any neurological deficits in the

claimant’s lower extremities. He also stated that there is no true

evidence of radiculopathy. He testified that the objective findings are

quite minimal.

Dr. Hansen opined that the claimant did not meet or equal any

listing. As to her residual functional capacity, Dr. Hansen opined that

the claimant could lift/carry 20 pounds occasionally and 10 pounds or

less more frequently. He opined that she could sit for one hour

before moving to stretch. He indicated that she could sit for a total of

five hours in an eight-hour workday. He indicated that she could

stand for 30 minutes at one time and walk 15 minutes at one time.

He indicated that she could stand and walk for four hours total in an

eight-hour workday. He stated that she could go up to six hours for

[sic] standing and walking, as long as it was a sit/stand option. He

opined that she may need two additional 15 minute breaks above

normal work breaks each day. He stated that she should not climb

ladders, ropes or scaffolds. He indicated that she can climb stairs or

ramps on an occasional basis. He indicated that she should avoid

work around moving machinery and unprotected heights. He stated

that she could balance, bend, kneel and stoop occasionally, but

never crawl. As she has a carpal tunnel syndrome, Dr. Hansen

would limit overhead reaching to frequently and handling, fingering

and repetitive hand motions to occasionally. In addition, he indicated

that cold and vibration should be limited.

(Tr. 23-24.)

The ALJ “accorded some partial weight to the opinion offered by Dr.

6

Hansen.” (Tr. 26.) The ALJ stated that “in light of the claimant’s lack of

neurological involvement, generally benign examination findings and minimal

findings on diagnostic imaging studies, the [ALJ] does not find that a sit/stand

option is necessary and does not find that use an assistive device has been

medically necessary as detailed under the provisions of SSR 96-9p.” (/d.)

Then, the ALJ found that the evidence did not establish that Plaintiff's

impairments were disabling in nature or prevented her from performing work in

accordance with the RFC assessment. (Tr. 24.) The ALJ stated:

The claimant has been treated at the VA for her depression, anxiety

and a pain disorder since she stopped working in late 2013. It does

not appear that her work ended due to mental related issues as she

claimed she could not perform the physical demands of this work at

an auto parts dealership. Her story is not consistent. First, she

stated that she was laid off and then she was terminated and then

that she resigned from this position. The VA records seem to

support the [] last version of events.

With regard to her back impairment, she has a minimal VA service-

connected disability for a lumbar and cervical spine strain.

Diagnostic imaging of her lower back and SI joints fail to

demonstrate any significant underlying pathology and this is

consistent with Dr. Hansen’s hearing testimony. The degenerative

changes demonstrated on numerous imaging studies are minimal at

best. Dr. Hansen testified that she might have some facet arthritis,

but the imaging studies do not support such a conclusion. Dr.

Hansen acknowledged that there were no frank neurological

abnormalities noted on the many physical exams contained in the

record. The claimant has received only conservative medical care

and the record does not indicate that any spine surgery has ever

been recommended. If the [RFC] is the most she can do based on

the objective medical findings and giving consideration to the

provisions of SSR 96-8p, the undersigned finds that this claimant

should be able to stand and walk for up to six hours and sit for a like

period of time. The claimant has had some recent NCV/EMG

studies showing some bilateral carpal tunnel syndrome, worse on the

right and the record also documents some trigger fingers. Her

treatment has been conservative. She has received some

corticosteroid injections for her trigger fingers and received some

wrist splints. .. . Further, the claimant has refused to consider any

surgery to relieve her carpal tunnel symptoms. She has reported

that she is able to zip zippers and fasten buttons and to perform

other tasks requiring some fine finger dexterity. As to her mental

health, the various mental health assessments performed by Dr.

Joshi have not been substantially abnormal. She has been on Zoloft

for more than 10 years but has often not taken this medication

consistently and has consumed, at times, large quantities of alcohol

in contravention of the advice of her treating VA doctors, which

actions have been adverse to her depression. She has continued to

drink despite Dr. Joshi’s repeated recommendations to stop and she

refused to participate in any therapy groups to assist her depression

or her substance abuse. Additionally, her daily activities do not

appear significantly limited. .. . VA treatment records indicate that

she has been able to visit with friends, watch television and football

games, pursue a degree in biomedical engineering, go camping with

friends at a state park, take steps toward volunteering at a local

museum, garden and take her two dogs to a local dog park.

(Tr. 24-25.) Ultimately, the ALJ concluded that there were jobs existing in

significant numbers in the national economy that Plaintiff could perform. (Tr. 27.)

The Court finds that the ALJ’s decision is supported by substantial

evidence. First, the ALJ did not err in his evaluation of Dr. Hansen’s opinions.

Dr. Hansen opined that Plaintiff could go up to six hours of standing and walking

as long as she had a sit/stand option. The ALJ found, however, that a sit/stand

option was not necessary in light of Plaintiff's “lack of neurological involvement,

generally benign examination findings and minimal findings on diagnostic imaging

studies.” (Tr. 26.) Substantial evidence in the record supports the ALJ’s findings.

As the ALJ observed, the diagnostic imaging studies of Plaintiff’s lower

back and sacroiliac joints failed to demonstrate any significant underlying

pathology and actually indicated lack of neurological involvement, which Dr.

Hansen conceded during his testimony. (See Tr. 53-54, 56, 61-62 & 65 (Dr.

Hansen’s pertinent testimony); Tr. 1066 (noting a lumbar MRI of April 10, 2012

showed degenerative disc disease at L5-S1 with no significant central canal or

foraminal narrowing with small annular tear); Tr. 1175-76 (noting an X-ray of the

SI joints from November 29, 2012 was normal); Tr. 1174-75 (noting a lumbar X-

ray from May 29, 2014 showed mild spasm or scoliosis, mild marginal spurring,

mild disc space narrowing at L5-S1, and mild spurring in the lower thoracic spine;

the impression was mild spondylosis with no acute bony abnormality).)

Further, the examination findings were generally benign, indicating “no

frank neurological abnormalities” as conceded by Dr. Hansen. (See Tr. 1034-40

(noting that Plaintiff was doing much better as of March 7, 2014); Tr. 993-1000

(reporting improved low back pain with some paraspinal tenderness as of July 7,

2014); Tr. 1540 (noting an unremarkable examination as of April 16, 2015); Tr.

1631-39 (noting that Plaintiff was stable as of December 31, 2015); Tr. 1581-83

(noting no evidence of right leg radiculopathy on EMG as of June 28, 2016); Tr.

1554 (noting continued pain management of Plaintiff’s lower back pain radiating

into the right lower extremity, in light of the EMG testing, which was negative for

radiculopathy, as of August 31, 2016).) The progress notes from primary care

9

provide that it was difficult to determine if Plaintiff had any true neurological

weakness. (See Tr. 1012-13, 1599 (also noting antalgic gait and guarded range

of motion).)3

Dr. Hansen also testified that Plaintiff “may have to have some extra rest

periods that are not ordinarily part of a job description, and if that’s necessary,

then she may need up to two 15-minute breaks per day additional to the normal

job description.” (Tr. 58.) However, later in his testimony, Dr. Hansen stated that

perhaps he has “over-limited” Plaintiff’s functional ability as to standing and

walking, given the lack of “evidence in the record that [Plaintiff] truly has

radiculopathy” and the “quite minimal” objective findings. (Tr. 61-62; see also Tr.

63 (“I could certainly be convinced that it would be more reasonable to bring her

up to at least four hours [of] standing and walking, and your question about six

3 The record also reflects some positive examination findings. (See Tr. 860-61

(noting, on March 26, 2014, tenderness to digital palpation, muscle tension and spasm

on both sides of the lumbar spine and sacroiliac joints, as well as multiple active trigger

points; a positive straight leg raising test, a positive prone hip extension test, and a

positive piriformis test on the right; reduced thoracic range of motion; and increased

sensation shown by pinwheel testing of the S1; but also noting that Plaintiff would

continue with her current treatment plan, consisting of manipulation, myofascial release,

conservative therapy, and at home therapy and exercise plan); Tr. 1012 (noting, on May

29, 2014, antalgic gait, moderate distress due to pain, and guarded range of motion of

the spine); Tr. 1185-88 (noting, on October 13, 2014, some positive findings on

examination, but also noting that the majority of Plaintiff’s limited range of motion and

immobility is secondary to her avoidance of muscle stretching, which may provide

significant benefit); see also Tr. 862-71.) Despite these positive examination findings,

most of the chiropractic treatment notes indicate that Plaintiff “continue[d] to improve

with manipulation and therapy with decreased pain levels and improved sleep pattern.”

(Tr. 865-71.) Plaintiff’s antalgic and/or slow gait was also noted during her mental

status examinations. (Tr. 944, 971, 1083, 1266, 1293, 1309, 1321, 1571, 1614, 1676,

2227; see also Tr. 1667 (noting “slow, deliberate, antalgic gait”).)

10

hours in an eight-hour day, I don’t have objective evidence that can say that she

could not stand and walk six hours; I’m basing it [again on] her description of

symptoms and a number of practitioners’ description of findings[.]”); Tr. 64

(“[T]here’s not really much objective evidence, if any, that suggests she has to be

highly restricted in her activities from the standing and walking standpoint. . . . I

said four hours, we could even go into six hours of walking and standing, as long

as it was a sit/stand/walk option where she could do different things as frequently

as possible.”).)

First, Dr. Hansen did not definitively opine that Plaintiff would need

additional breaks. (See Tr. 58.) Moreover, his vague opinion on that issue was

part of his earlier testimony, which he was willing to change because it admittedly

“over-limited” Plaintiff’s functional ability. Further, as shown above, the ALJ’s

reasons for giving “some partial weight” to Dr. Hansen’s opinions are supported

by substantial evidence. The ALJ credited only those parts of Dr. Hansen’s

opinions that he found to be supported by the record. In any event, the ALJ’s

RFC assessment did not need to mirror or match the findings or opinions of any

particular medical source (especially when that source’s opinions have been

discredited), because the responsibility for assessing the RFC rests with the ALJ.

Kopke v. Astrue, 2012 WL 4903470, *5 (M.D. Fla. Sept. 26, 2012) (report and

recommendation adopted by 2012 WL 4867423 (M.D. Fla. Oct. 15, 2012)).

11

Plaintiff further argues that the ALJ’s reasons for according “little weight” to

Dr. Wilmoth’s opinion are not supported by substantial evidence. After reviewing

certain medical records, administering tests, and performing a mental status

examination of Plaintiff on December 22, 2016, Dr. Wilmoth opined, in relevant

part, that Plaintiff’s “low tolerance for being around people for very long would

limit greatly her ability to function in a work environment” and “[h]er capacity to

interact with others, stay focused on a project and have the capacity to see it

through [was] extremely limited.” (Tr. 2209.) The ALJ provided specific reasons,

supported by substantial evidence, for giving “little weight” to Dr. Wilmoth’s

opinions.

First, as the ALJ noted, Dr. Wilmoth was a one-time examining consultant;

as such, her opinions were not entitled to any special deference. See Crawford

v. Comm’r of Soc. Sec., 363 F.3d 1155, 1160 (11th Cir. 2004). The ALJ also

stated that it appeared “the focus of [Dr. Wilmoth’s] assessment was to try to

assist the claimant in gaining an increased VA service connected disability rating

as she was attempting to link her depression to her military service,” which was

“not supported by either her VA records or her intervening work history.” (Tr. 25.)

The ALJ’s observation seems to be supported by Dr. Wilmoth’s report. (See Tr.

2202 (“The VA has awarded her 40% for her back injury but nothing for the

depression that has accompanied her pain. She was referred for this evaluation

12

to determine her diagnosis and her abilities.”); Tr. 2208 (“Likely, the impetus for

Ms. Naples’s level of depression and chronic pain was her service in the military

and the accidents she encountered in the military.”); Tr. 2209 (“Her symptoms,

other than pain, have developed and worsened over time as a result of her

treatment by the Army. The chronic pain she is in has contributed to her

depression and to her suicidal thoughts. Because of their origin, they must be

assumed to be 100% attributable to her time in service.”); see also Tr. 2197-98

(“Symptoms interact and affect each other. . . . All of her diagnoses affect her

ability to function in the workplace, along with her medical issues. . . . [A] [s]lip

and fall in the service [and a] motorcycle accident in [the] service were the cause

of the pain[,] but being taken off the flightline and later discharged from [the]

service all contributed to her current condition.”).)

Further, the ALJ properly stated that Dr. Wilmoth’s assessment was “in

some respects, inconsistent with the conclusions offered by Dr. Joshi, [Plaintiff’s]

VA treating psychiatrist who has treated her for more than one and a half years”

and that “Dr. Joshi’s many mental status assessments [were] inconsistent with

the evaluation offered by Dr. Wilmoth and fail[ed] to support her contention that

[Plaintiff’s] depression [was] connected [to] her prior military service.” (Tr. 25.)

These statements are also supported by substantial evidence.

For example, the ALJ properly stated that “the various mental health

13

assessments performed by Dr. Joshi have not been substantially abnormal” (Tr.

24). (See Tr. 976-86 (noting, on July 15, 2014, that Plaintiff had blunted affect;

passive, fleeting suicide ideation due to chronic pain and finances, without intent

or plan; and a positive screen for depression; but noting an otherwise normal

mental status examination); Tr. 1317-24 (noting an unremarkable mental status

exam as of September 17, 2014); Tr. 1305-1313 (noting an unremarkable mental

status exam, other than an irritable mood and a tense face, as of October 15,

2014); Tr. 1289-96 (noting an unremarkable mental status examination, except

an irritable mood and constricted affect, as of October 31, 2014); Tr. 1735-43

(noting an unremarkable mental status examination as of May 4, 2015); Tr. 1720-

29 (noting an unremarkable mental status examination as of June 24, 2015); Tr.

1676-83 (noting an unremarkable mental status examination as of October 14,

2015); Tr. 1650-55 (noting an unremarkable mental status examination as of

December 15, 2015); Tr. 1615 (noting a dysphoric and irritable mood and

constricted affect, but otherwise normal mental status examination as of March

15, 2016); Tr. 1567-76 (noting an unremarkable mental status examination,

except a sad mood, as of July 22, 2016); Tr. 2223-34 (noting an unremarkable

mental status examination, other than an irritable mood, as of November 28,

2016, and reporting, inter alia, that medications were helping); see also Tr. 1083-

85 (noting that Plaintiff improved after medication changes as of May 7, 2013); Tr.

14

1067-68 (noting that Plaintiffs depression was in remission as of December 10,

2013); Tr. 941 (noting on August 20, 2014 that Plaintiff was “less anxious, less

angry, less irritable and less depressed” and had more interest and motivation);

but see Tr. 1754-61 (noting a dysphoric mood, constricted affect, and feelings of

hopelessness, helplessness, and failure as of March 9, 2015).

In addition, the ALJ stated that Plaintiff continued to drink and refused to

participate in therapy groups for her depression or substance abuse, contrary to

Dr. Joshi’s recommendations. (Tr. 25.) This statement is also supported by

substantial evidence in the record. (See Tr. 948, 1270, 1296, 1313, 1761, 2232.)

Based on the foregoing, the ALJ properly evaluated the opinions of Dr. Wilmoth

and Dr. Hansen, and his decision is supported by substantial evidence.

lll. Conclusion

The Court does not make independent factual determinations, re-weigh the

evidence, or substitute its decision for that of the ALJ. Thus, the question is not

whether the Court would have arrived at the same decision on de novo review;

rather, the Court’s review is limited to determining whether the ALJ’s findings are

based on correct legal standards and supported by substantial evidence. Based

on this standard of review, the Court concludes that the ALJ’s decision that

Plaintiff was not disabled within the meaning of the Social Security Act for the

time period in question should be affirmed.

15

Accordingly, it is ORDERED:

1. The Commissioner's decision is AFFIRMED.

2. The Clerk of Court shall enter judgment accordingly, terminate any

pending motions, and close the file.

DONE AND ORDERED at Jacksonville, Florida, on August 28, 2019.

MONTE C. RICHARDSON

UNITED STATES MAGISTRATE JUDGE

Copies to:

Counsel of Record

16